Jaime Dawn Hartin v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-07-00547-CR ____________________ JAIME DAWN HARTIN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 06-219252 MEMORANDUM OPINION Jaime Dawn Hartin appeals her conviction for driving while intoxicated. She contends the trial court erred by excluding her mother's opinions about Hartin's behavior which were based, in part, on her review of the videotape the State trooper made during the stop. Hartin also claims the trial court erred in excluding a demonstrative exhibit during her attorney's closing argument. We affirm. Background Trooper James DeFrance stopped Hartin after observing her commit several traffic violations. When she stepped out of her car, Trooper DeFrance smelled "a very strong odor of an alcoholic beverage on her breath[.]" After Hartin admitted drinking two to three glasses of wine, Trooper DeFrance gave her two field sobriety tests. Of the tests she performed, Hartin demonstrated six out of six clues of intoxication on the horizontal gaze nystagmus test and seven out of eight clues of intoxication on the walk-and-turn test. After forming the opinion that Hartin was intoxicated, Trooper DeFrance arrested her. The record includes a videotape depicting the stop admitted into evidence during the trial. Hartin chose to testify at her trial. She blamed her difficulty in performing the walk-and-turn test on her weight and her fear of the officer. Hartin refused Trooper DeFrance's request that she perform the one-leg stand; she also refused his request to provide a breath test. The jury convicted Hartin of driving while intoxicated. Hartin raises three issues in her appeal. Exclusion of Testimony In her first issue, Hartin challenges the trial court's decision to exclude from evidence Claudia Potter's opinion that addressed whether Hartin appeared intoxicated. Potter is Hartin's mother, and her opinions were based on her knowledge of her daughter's experiences and watching the videotape of the stop. Hartin alleges that the trial court's denial of her mother's testimony deprived her of due process in presenting a complete defense. In the alternative, Hartin claims the testimony was admissible pursuant to Texas Rule of Evidence 701. Texas Rule of Evidence 701 provides that if a witness is not testifying as an expert, testimony in the form of opinions or inferences must be limited to opinions or inferences that are rationally based on the perception of the witness and helpful to a clear understanding of the testimony or the determination of a fact in issue. See Tex. R. Evid. 701. Whether opinions offered by lay witnesses satisfy the two requirements of Rule 701 is a decision within the sound discretion of the trial court; the court's decision regarding admissibility is reviewed under an abuse of discretion standard. Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997). "[I]f there is evidence in the record supporting the trial court's decision to admit or exclude an opinion under Rule 701, there is no abuse and the appellate court must defer to that decision." Id. Rule 701's requirement that lay opinion testimony be based on the witness's perceptions incorporates the personal knowledge requirement of Rule of Evidence 602. See Tex. R. Evid. 602, 701; Fairow, 943 S.W.2d at 898; see also Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002). Perceptions refer to a witness's interpretation of information acquired through his or her own senses or experiences at the time of the event (i.e., things the witness saw, heard, smelled, touched, felt, or tasted). Since Rule 701 requires the testimony to be based on the witness's perception, it is necessary that the witness personally observed or experienced the events about which he or she is testifying. Osbourn, 92 S.W.3d at 535. If the proponent of the testimony cannot establish personal knowledge, the trial court should exclude the testimony. Fairow, 943 S.W.2d at 898. Potter did not personally observe the stop or Hartin's interaction with Trooper DeFrance prior to her arrest. Therefore, Potter's lay opinion was not based on personal knowledge that she had acquired at the time of the event. "Opinion testimony that is conclusory or speculative is not relevant evidence[.]" Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004). The trial court excluded Potter's testimony because it was speculative lay opinion testimony; thus it was not relevant. In light of our conclusion that Potter's testimony was not relevant to the issue in dispute, we need not reach Hartin's due process argument. See generally United States v. Scheffer, 523 U.S. 303, 308-09, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (recognizing that State lawmakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials; therefore, a rule that ensures that only reliable evidence be presented at trial serves a legitimate interest and does not unconstitutionally abridge the right to present a defense). We overrule Hartin's first issue. In her second issue, Hartin argues the trial court erred by excluding Potter's opinion testimony offered to explain that Hartin's past experience with her stepfather explained why she had refused to cooperate with Trooper DeFrance's requests. Hartin contends that "a lay witness may give an opinion regarding a third party's culpable mental state." Although a witness does not possess personal knowledge of another's mental state, the witness may possess personal knowledge of facts from which an opinion regarding mental state may be drawn. Fairow, 943 S.W.2d at 899. To satisfy the perception requirement of Rule 701, the proponent of the lay opinion testimony must establish personal knowledge of the facts underlying the opinion. See Tex. R. Evid. 602, 701; Fairow, 943 S.W.2d at 898. Establishing personal knowledge with respect to lay opinion requires that the witness personally observe or experience the events about which he or she is testifying. Osbourn, 92 S.W.3d at 535; see, e.g., Doyle v. State, 875 S.W.2d 21, 23 (Tex. App.-Tyler 1994, no pet.) (holding that prison guards could give opinions on whether a blow with a fist was intentional or accidental because they witnessed the attack and their opinions were rationally based on what they saw). Potter was not present at the stop. Thus, while Potter might have had personal knowledge of some past events concerning Hartin, Potter did not have personal knowledge of the facts surrounding the stop on which her opinion depended. Because Potter did not personally observe or experience the events leading up to Hartin's arrest, the proposed testimony did not meet the requirements of Rule 701. As a result, the trial court properly excluded Potter's personal opinion offered to explain why Hartin had refused to cooperate with Trooper DeFrance's requests. We overrule Hartin's second issue. Exclusion of Demonstrative Evidence In Hartin's third issue, she asserts that the trial court erred in refusing to allow her attorney to use a "Burden of Proof" chart during his closing argument. Although excluded by the trial court, the record includes a copy of the chart and the information it contained. Hartin claims the trial court's exclusion of the chart, combined with excluding Potter's opinion, "made it impossible for [Hartin] to get a fair trial in this case." Hartin contends the chart "was going to be used to show the jury what a high standard it is to prove guilt beyond a reasonable doubt." Despite the requirement to provide relevant citation to authority under Texas Rule of Appellate Procedure 38.1, Hartin cites no authorities to support her claim that the trial court erred in excluding her demonstrative evidence. See Bell v. State, 90 S.W.3d 301, 305 (Tex. Crim. App. 2002) ("It is incumbent upon appellant to cite specific legal authority and to provide legal arguments based upon that authority."). Moreover, a trial court has the discretion to permit counsel the use of visual aids, including charts, to assist juries in summarizing the evidence. Markey v. State, 996 S.W.2d 226, 231 (Tex. App.-Houston [14th Dist.] 1999, no pet.) (citing several cases); see also Clay v. State, 592 S.W.2d 609, 613 (Tex. Crim. App. [Panel Op.] 1980). During closing argument, the State and defense counsel are both entitled to give a reasonable and proper explanation of the law contained in the jury charge. Wilder v. State, 583 S.W.2d 349, 362 (Tex. Crim. App. 1979), overruled on other grounds by Green v. State, 682 S.W.2d 271, 287 (Tex. Crim. App. 1984); Grant v. State, 738 S.W.2d 309, 311 (Tex. App.-Houston [1st Dist.] 1987, pet. ref'd). However, neither party may make a statement of what purports to be the law when that statement of law is not contained in the charge. Grant, 738 S.W.2d at 311. With respect to defining beyond a reasonable doubt, the Court of Criminal Appeals has directed that "the better practice is to give no definition of reasonable doubt at all to the jury." Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). In this case, the jury charge did not define beyond a reasonable doubt. The chart Hartin asked to use during argument contains a colored column with the phrase "GUILT BEYOND A REASONABLE DOUBT" at the top and "PROVEN NOT GUILTY" at the bottom. Between these phrases are other phrases such as: "GUILT HIGHLY LIKELY," "POSSIBLY GUILTY," "MAYBE NOT," "PROBABLY NOT," and "LESS THAN LIKELY." The trial court could have reasonably concluded that the chart attempted to define beyond a reasonable doubt in terms of gradations of proof that might tend to mislead or confuse the jury. Further, the demonstrative exhibit is not connected to any evidence admitted during trial; therefore, it is not a summary of the evidence. Hartin's argument fails to persuade us that the trial court abused its discretion in excluding the chart. We overrule her third issue and affirm the trial court's judgment. AFFIRMED. ____________________________ HOLLIS HORTON Justice Submitted on February 12, 2009 Opinion Delivered April 22, 2009 Do Not Publish Before Gaultney, Kreger, and Horton, JJ.